Dogs
Control of Dogs Act 1986
Interpretation.
1.—In this Act—
“damage” includes death or injury to any person (including any disease caused to a person or any impairment of his physical or mental condition) and includes injury to, or total or partial destruction of, property;
“dispose of” means to sell or to give away;
“dog” includes a bitch of any age or a dog of any age;
“dog licence” means a licence entitling a person to keep a dog;
“dog warden” means a person employed under section 15 of this Act to be a dog warden for the purposes of this Act;
F1[“general dog licence” means a licence entitling a person to keep an unspecified number of dogs at a premises specified in the licence, one premises only being so specified;]
“greyhound” includes any whippet and any strain or cross of greyhound or whippet;
“licence” includes, as the context may require, a dog licence and a general dog licence;
“livestock” means cattle, sheep, swine, horses and all other equine animals, poultry, goats and deer not in the wild state;
F2[“local authority ” means a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014); and references to the functional area of a local authority shall be construed accordingly and local authority shall, as the context may require, include any other person with whom a local authority has entered into an arrangement pursuant to section 15 of this Act;]
“the Minister” means the Minister for the Environment;
“occupier” includes a person who owns and occupies, as well as a person who occupies only, any premises and in relation to any land includes a person who is in possession of land under a letting in conacre or for the purposes of agistment or for temporary depasturage;
“owner” in relation to a dog includes the occupier of any premises where the dog is kept or permitted to live or remain at any particular time unless such occupier proves to the contrary: Provided always that where there is more than one dwelling in any house, the occupier of the dwelling in which the dog is kept, or is permitted to live or remain, shall, until the contrary is proved, be presumed to be the owner;
“person in charge of livestock” includes the occupier of any land on which the livestock are kept, or the owner of the livestock, or any member of the family of such occupier or owner, or any person authorised to take charge of the livestock by any of them;
“poultry” means domestic fowls, turkeys, geese, ducks, guinea-fowls, pigeons and peafowl and includes, whilst in captivity, pheasants, partridges, grouse and quail;
“premises” includes any house or land;
“prescribed” means prescribed by regulations made by the Minister;
“public place” means any street, road, seashore, park, land, field or other place to which the public have access, whether by right or by permission, and whether subject to or free of charge;
“sterilise” means to render permanently incapable of breeding;
“stray dog” has the meaning assigned to it by section 11 of this Act;
“Superintendent of the Garda Síochána” means the Superintendent of the Garda Síochána for the area in which a dog is, is found, or is shot;
“veterinary surgeon” means any person who is lawfully qualified to practise veterinary surgery in the State;
“worry” in relation to livestock, means to attack or kill or to chase livestock in such a way as may reasonably be expected to cause the death of or injury or suffering to the livestock or to result in financial loss to the owner of the livestock.
Control of dogs.
9.—(1) The owner or any other person in charge of a dog shall not permit the dog to be in any place other than—
(a) the premises of the owner, or
(b) the premises of such other person in charge of the dog, or
(c) the premises of any other person, with the consent of that person,
unless such owner or such other person in charge of the dog accompanies it and keeps it under effectual control.
(2) If a dog worries livestock, the owner or any other person in charge of the dog shall be guilty of an offence unless it is established that at the material time the dog worried the livestock for the purpose of removing trespassing livestock and that having regard to all the circumstances the action was reasonable and necessary.
(3) F10[…]
Annotations
Amendments:
F10
Repealed (1.02.1999) by Control of Dogs (Amendment) Act 1992 (13/1992), s. 11(a), S.I. No. 443 of 1998.
Control of greyhounds.
10.—(1) A person shall not permit a greyhound to be in any public place unless such greyhound is being led by means of a sufficiently strong chain or leash.
(2) A person shall not lead or cause or permit to be led by any one person more than four greyhounds at a time in any public place.
Stray dogs.
11.—(1) A dog warden shall take all reasonable steps to seize and detain any dog that appears to him to be a stray dog and he may enter any premises (other than a dwelling) for the purposes of such seizure and detention.
(2) A member of the Garda Síochána may seize and detain any dog that appears to him to be a stray dog and he may enter any premises (other than a dwelling) for the purposes of such seizure and detention.
(3) Whenever a member of the Garda Síochána seizes or detains a dog pursuant to subsection (2) of this section, he may deliver the dog to the local authority in whose functional area the dog was found.
(4) Whenever a stray dog is seized or detained pursuant to this section by a dog warden or a member of the Garda Síochána, the local authority or, as the case may be, the Superintendent of the Garda Síochána shall give notice to the owner or other person in charge of the dog, if the name of such owner or other person is known to it or him or can be readily ascertained, that the dog has been seized and detained and that the dog will be disposed of, or destroyed, after five days from the date of the giving of the notice, if such dog is not claimed and all expenses relating to its seizure and detention are not paid by the owner or, as the case may be, the person in charge of the dog.
(5) If any person claims a dog which has been seized and detained pursuant to this section, the local authority or the Superintendent of the Garda Síochána shall give the dog to such person if such person—
(a) satisfies the local authority or the Superintendent of the Garda Síochána, as the case may be, that he is the owner of the dog or has been authorised by the owner to claim the dog,
F11[(b) makes a declaration in the prescribed form stating that, either (as the case may be), he is such owner or has been so authorised to claim the dog and produces, for inspection by the local authority or the Superintendent of the Garda Síochána, a dog licence relating to the dog or a general dog licence issued either before or after the commencement of section 2 of the Control of Dogs (Amendment) Act, 1992, and (if issued after such commencement) relating to the premises where the dog is kept, and]
(c) pays the amount of the expenditure incurred by the local authority or by the Garda Síochána in respect of the seizure and detention of the dog.
(6) Whenever a stray dog is seized or detained pursuant to this section by a dog warden or a member of the Garda Síochána, the local authority, or as the case may be, the Superintendent of the Garda Síochána shall cause an entry to be made in the register required to be kept under section 14 of this Act.
(7) Five days following the making of an entry in the register pursuant to subsection (6) of this section, or following the giving of a notice pursuant to subsection (4) of this section, whichever is the later, the local authority, or the Superintendent of the Garda Síochána, as the case may be, if no person has been given the dog pursuant to subsection (5) of this section and paid all expenses relating to its seizure and detention, may, subject to subsection (8) of this section, dispose of the dog or arrange for its destruction in a humane manner.
(8) A local authority or a Superintendent of the Garda Síochána, as the case may be, shall not dispose of a dog pursuant to subsection (7) of this section for the purposes of animal experimentation.
(9) A local authority may, before disposing of a dog under this section, sterilise, or arrange to have sterilised, the dog.
(10) Where a local authority or a Superintendent of the Garda Síochána disposes of a dog under this section, the person to whom the dog is given shall become the owner of the dog and the title of its previous owner shall thereupon become extinguished.
(11) In this Act “stray dog” includes any dog which appears to be unaccompanied by a person unless such dog is on the premises of its owner or of some other person who has the dog in his charge or of any other person with that person’s consent.
(12) The Minister may, by regulations, vary the period of days specified in subsections (4) and (7) of this section.
Annotations
Amendments:
F11
Substituted (1.02.1999) by Control of Dogs (Amendment) Act 1992 (13/1992), s. 5, S.I. No. 443 of 1998.
Editorial Notes:
E11
Power pursuant to section exercised (1.02.1999) by Control of Dogs Regulations 1998 (S.I. No. 442 of 1998), in effect as per reg. 2.
E12
Previous affecting provision: power pursuant to section exercised (3.02.1987) by Control of Dogs Regulations 1987 (S.I. No. 30 of 1987); revoked (1.02.1999) by Control of Dogs Regulations 1998 (S.I. No. 442 of 1998), reg. 4 and sch. 1, in effect as per reg. 2.
Unwanted dogs.
12.—(1) A local authority may accept from its owner, or from a person authorised by the owner, an unwanted dog and, subject to subsection (2) of this section, may dispose of such dog or arrange for its destruction in a humane manner.
(2) A local authority shall not dispose of a dog pursuant to subsection (1) of this section for the purposes of animal experimentation.
(3) A local authority may, before disposing of a dog under this section, sterilise, or arrange to have sterilised, the dog.
(4) Where a local authority disposes of a dog under this section, the person to whom the dog is given shall become the owner of the dog and the title of its previous owner shall thereupon become extinguished.
Finding of stray dogs.
13.—(1) Any person, other than a dog warden or a member of the Garda Síochána, who finds and takes possession of a stray dog shall, forthwith—
(a) return the dog to its owner, or
(b) deliver the dog to a dog warden, or
(c) detain the dog and give notice in writing containing a description of the dog, the address of the place where it was found, and the address of the place where it is detained to the member in charge at the nearest Garda Station to the place where the dog was found, or to a dog warden.
(2) In particular and without prejudice to the provisions of subsection (1) of this section, where any person has reasonable grounds for believing that a stray dog has worried or is about to worry livestock, such person may seize the dog and shall forthwith deliver it to a dog warden.
(3) Where a person has found a stray dog and has retained possession of the dog for a year after the date on which he gave the notice referred to in subsection (1) of this section, and the dog has not been claimed by its owner within that year, such person shall become the owner of the dog and the title of the former owner to the dog shall be extinguished.
(4) Subsection (3) of this section shall not apply if, during the period of a year specified in that subsection, the person who found the dog has ascertained who is the owner of the dog, whereupon such person shall notify the owner that the dog is in his possesion and that the dog can be collected from him.
(5) Notwithstanding the provisions of section 2 of this Act, a person who is not the holder of a general dog licence and who detains a stray dog pursuant to this section shall not be required to obtain a dog licence relating to that dog until he has kept the dog in his possession for a period of not less than twenty-eight days, and the said section 2 shall be construed and have effect accordingly.
Liability of owner for damage by dog.
21.—(1) The owner of a dog shall be liable in damages for damage caused in an attack on any person by the dog and for injury done by it to any livestock; and it shall not be necessary for the person seeking such damages to show a previous mischievous propensity in the dog, or the owner’s knowledge of such previous propensity, or to show that such injury or damage was attributable to neglect on the part of the owner.
(2) Where livestock are injured by a dog on land on to which they had strayed, and either the dog belonged to the occupier of the land or its presence on the land was authorised by the occupier, a person shall not be liable under this section in respect of injury done to the livestock, unless the person caused the dog to attack the livestock.
(3) A person is liable in damages for any damage caused by a dog kept on any premises or structure to a person trespassing thereon only in accordance with the rules of law relating to liability for negligence.
(4) (a) Any damage or injury for which a person is made liable under this section shall be deemed to be attributable to a wrong within the meaning of the Civil Liability Act, 1961, and the provisions of that Act shall apply accordingly.
(b) Sections 11 (2) (a) and 11 (2) (b) of the Statute of Limitations, 1957, shall apply to such damage.
Dangerous dogs.
22.—(1) Where—
(a) on a complaint being made to the District Court by any interested person that a dog is dangerous and not kept under proper control, or
(b) on the conviction of any person for an offence under section 9 (2) of this Act,
it appears to the Court that the dog is dangerous and not kept under proper control, the Court may, in addition to any other penalty which it may impose, order that the dog be kept under proper control or be destroyed.
(2) Whenever the Court orders the destruction of a dog pursuant to subsection (1) of this section, the Court may—
(a) direct that the dog be delivered to a dog warden or any suitable person to be destroyed, and
(b) direct that the expenses of the destruction of the dog be paid by the owner of the dog.
(3) Whenever a dog is delivered to a dog warden or any other person pursuant to an order of the Court to be destroyed, the person to whom the dog is delivered shall, as soon as possible, destroy the dog, or cause it to be destroyed, in a humane manner.
(4) Any sums payable by the owner of a dog pursuant to a direction of the Court under subsection (2) (b) of this section may be recovered by a local authority as a simple contract debt in any court of competent jurisdiction.
(5) Where a dog is proved to have caused damage in an attack on any person, or to have injured livestock, it may be dealt with under this section as a dangerous dog which has not been kept under proper control.
Defence in action for damages for shooting dog.
23.—(1) It shall be a defence to any action for damages against a person for the shooting of a dog, or to any charge arising out of the shooting of a dog, if the defendant proves that—
(a) the dog was shot when it was worrying, or was about to worry, livestock and that there were no other reasonable means of ending or preventing the worrying; or
(b) (i) the dog was a stray dog which was in the vicinity of a place where livestock had been injured or killed, and
(ii) the defendant reasonably believed that the dog had been involved in the injury or killing, and
(iii) there were no practicable means of seizing the dog or ascertaining to whom it belonged; and
(c) he was the person in charge of the livestock; and
(d) he notified within forty-eight hours the member in charge at the nearest Garda Station to the place where the dog was shot of the incident.
(2) The provisions of subsection (1) (a) and subsection (1) (b) (i) and (iii) of this section shall be deemed to have been satisfied if the defendant believed that those provisions had been satisfied and he had reasonable grounds for that belief.
Burial of carcases.
24.—F21[…]
Annotations
Amendments:
F21
Repealed (6.03.2014) by Animal Health and Welfare Act 2013 (15/2013), s. 4 and sch. 1, S.I. No. 106 of 2014.
Nuisance by barking dogs.
25.—(1) Where, on a complaint being made to the District Court by any person, it appears that a nuisance has been created as a result of excessive barking by a dog, the court may—
(a) order the occupier of the premises in which the dog is kept to abate the nuisance by exercising due control over the dog;
(b) make an order limiting for such period as may be specified in the order the number of dogs to be kept by the respondent on his premises;
(c) direct that the dog be delivered to a dog warden to be dealt with by him in accordance with the provisions of this Act as if the dog were an unwanted dog.
(2) Before any person makes a complaint to the District Court in relation to a nuisance caused by the excessive barking of a dog, he shall serve notice in the prescribed form, within such time as may be specified in the notice, of his intention to make such a complaint on the occupier of the premises in which the dog is kept.
Annotations
Editorial Notes:
E31
Power pursuant to section exercised (1.02.1999) by Control of Dogs Regulations 1998 (S.I. No. 442 of 1998), in effect as per reg. 2.
E32
Previous affecting provision: power pursuant to section exercised (28.02.1987) by Control of Dogs (No. 2) Regulations 1987 (S.I. No. 59 of 1987); revoked (1.02.1999) by Control of Dogs Regulations 1998 (S.I. No. 442 of 1998), reg. 4 and sch. 1, in effect as per reg. 2.
Search warrants.
26.—(1) If a Justice of the District Court or a Peace Commissioner is satisfied by the information on oath of a member of the Garda Síochána that there were reasonable grounds for believing that—
(a) a dog has attacked a person or has worried livestock, and
(b) in consequence of the attack or the worrying, the owner of the dog has committed an offence under this Act, and
(c) a person is in possession in any premises of a dog which the member of the Garda Síochána has reasonable grounds for believing to be the dog involved in the said attack or the said worrying,
the District Justice or, as the case may be, the Peace Commissioner may issue a search warrant under this section.
(2) A search warrant under this section shall be expressed, and shall operate, to authorise the member of the Garda Síochána named in the search warrant, along with such other members of the Garda Síochána as may be necessary, to enter the premises specified in the search warrant and search for the dog.
(3) A member of the Garda Síochána who is authorised by a search warrant under this section to enter a premises may use such force as may be reasonably necessary to secure entry into the premises.
(4) Any dog which is found during a search pursuant to a search warrant under this section may be removed from the premises and detained by the Garda Síochána for examination.
Offences and penalities.
F22[27.—(1) A person who—
(a) keeps or takes or transfers possession of a dog contrary to section 2 of this Act, or
(b) fails to comply with the provisions of section 9 (1) or 10 or subsection (1) or (2) of section 13 of this Act, or
(c) fails to produce a licence when requested so to do under section 16 of this Act, or
(d) is in breach of any bye-law under section 17 of this Act, or
(e) keeps a dog when he is disqualified for holding a licence under section 18 of this Act, or
(f) is in breach of any regulation under section 19 of this Act, or
(g) permits the carcase of any livestock to remain unburied contrary to section 24 of this Act,
shall be guilty of an offence.
(2) A person guilty of an offence under this Act shall be liable on summary conviction to a fine not exceeding F23[£1,500] or to imprisonment for a term not exceeding 3 months or to both.]
Cases
Quinlisk v. Kearney & Ors
[2004] IEHC 96 (10 June 2004)
Judgment of Mr. Justice Roderick Murphy delivered on 10th June, 2004.
Outline
Some time after 11.30 p.m. on a dry summer’s evening on the 7th June, 1999 the plaintiff was returning from a meeting of Muintir na Tire in Roscrea. She was left off by her friend at the entrance to Sheehane estate where she and the defendants lived and was proceeding towards her house on the footpath at the side of the green, when a dog accosted her from behind in a threatening and hostile manner, causing her to fall to the ground. She suffered an injury to her pelvis, was in considerable pain, crossed the road and crawled home holding on to the wall.
The net issue in this case is whether the dog, which she described as a brown terrier-like dog, was in the care, management and/or control of the defendants.
The plaintiff relied on the definition of owner in the Control of Dogs Act, 1986, the obligation of such owner under s. 9 and the liability arising under s. 21 of that Act.
” ‘Owner’ in relation to a dog includes the occupier of any premises where the dog is kept or permitted to live or remain at any particular time unless such occupier proves to the contrary; . . .
‘Occupier’ includes a person who owns and occupies, as well as a person who occupies only, . . .
‘Stray dog’ has a meaning assigned to it by section 11(ii) of the Act -includes any dog which appears to be unaccompanied by a person unless such dog is on the premises of its owner or of some other person who has the dog in his charge or of any other person with that person’s consent.
‘Dog warden’ means a person employed under section 15 of the Act as a person employed by the local authority for the purposes of the Act.”
Section 15(2) states:-
“Every local authority has an obligation to establish and maintain one or more shelters for dogs seized, …
A dog warden, pursuant to s. 11(i), shall take all reasonable steps to seize and detain any dog that appears to him to be a stray dog and he may enter any premises (other than a dwelling) for the purpose of such seizure and detention.”
Section 11(2) states:-
“A member of the Garda Síochána may seize and detain any dog that appears to him to be a stray dog and he may enter any premises (other than a dwelling) for the purpose of such seizure and detention.”
Section 11(4) allows that:-
“Whenever a stray dog is seized or detained pursuant to this section by a dog warden or a member of the Garda Síochána, the local authority or, as the case may be, the Superintendent of the Garda Síochána shall give notice to the owner or other person in charge of the dog, if the name of such owner or other person is known to it or him or can be readily ascertained, that the dog has been seized and detained and that the dog will be disposed of, or destroyed, after five days from the date of the notice. . .”
Section 9(1) of the Act provides that:-
“[t]he owner or any other person in charge of a dog shall not permit the dog to be in any place other than –
(a) the premises of the owner, or
(b) the premises of such other person in charge of the dog, or
(c) the premises of any other person, with the consent of that person, unless such owner or such other person in charge of the dog accompanies it and keeps it under effectual control.”
Liability of owner for damage by a dog
Section 21(1) of the Act provides as follows:-
“The owner of a dog shall be liable in damages for damage caused in an attack on any person by the dog . . . and it shall not be necessary for the person seeking such damages to show a previous mischievous propensity in the dog, or the owner’s knowledge of such propensity, or to show that such injury or damage was attributable to neglect on the part of the owner.”
It would appear, that in addition to the statutory liability, there also remains the common law remedy under the scienter action and, of course, the liability in negligence is provided for in Kavanagh v. Stokes [1942] I.R. 596 or in trespass (if the owner has commanded the dog to attack).
Damage caused in an attack on a person need not involve physical contact – the word ‘attack’ though not defined in this Act has been judicially defined as including an assault which does not, necessarily, involve battery. Indeed, in the commentary to this section Kerr, Irish Current Law Statutes Annotated at 86/32-44 suggests that physical contact may arise where a person falls and injures themselves when getting out of the way of an attacking dog.
It is clear that the s. 21(1) does not impose liability for any injury other than “damage caused in an attack on any person”. Accordingly, where a dog runs out into the road and a motorcyclist collides with it causing himself injury, the necessary ingredients of ‘attack’ may not be present.
Evidence of Plaintiff
The plaintiff lives across the green from the defendants who are all members of the same family, being the son and his mother and father respectively.
The plaintiff, in her evidence, described walking home having left her friend some 200 yards from her house. She said she felt a tug on her left leg and saw a small medium brown coloured dog growling. It did not have a smooth coat but the coat had a slight little kink or curl on it. She said the dog pulled so hard that she turned around, lost her balance and fell. The dog had come up from behind her as she walked on the path of the green with her back to the defendants’ house and going towards her own house. She lay on the ground for a quarter of an hour with severe pain in her right hand side. Her husband was at home and she spent two days lying in bed in a lot of pain. Two days later her husband brought her by car to see her G.P. She said the injury to her groin had exacerbated previous trouble she had had. Two days later she returned to the same practice and was sent to Tullamore Hospital,
X-rayed and given painkillers. There was no bed available and she returned home where she spent six weeks in bed in severe pain, having to be carried to the bathroom. She was then on crutches until January, 2001, some seven months later. In relation to her previous problem she said that two discs had been removed in 1982 or 1983, and that she had had intermittent problems since then. She had pain in her right hand side, in her back and a burning pain which eventually went down her back to her legs. It was the exact pain that she had before the accident. She had surgery and three epidurals which solved that pain. She said that the pain started again in late 2001 but she had no pain now. She went back to work in May, 2001, some seven months later – she was attending her doctor because of her back pain and then she developed rheumatoid arthritis at Christmas 2001. At this stage she was advised by her G.P., Dr. McManus, to retire or else she would undo everything that he was doing for her.
She told the court that in mid-August she had seen the dog going into Mr. Kearney’s (the third named defendant) house. She went over on her crutches and asked Mr. Kearney if he owned the brown dog that was then at Mr. Kearney’s door. She said that he replied that it was one of his son’s (the first named defendant) dogs and added that his son went hunting. When she was sure that the dog belonged to Mr. Kearney she reported it to the dog warden.
Counsel for the defendants indicated that he accepted that there had been an accident and said that the only issue was as to the ownership of the dog. The defendants denied owning the dog.
The plaintiff agreed in cross examination that there were a lot of dogs around the housing estate, but could not say how many. Counsel put it to her that Mrs. Maher, who lived beside the Kearneys, may have had a dog at the time. The plaintiff said she was more aware of the Kearney’s black Terrier dog, which she had seen before the accident. She said she kept away from the black dog when she walked her own dog. She had a Labrador and later a retriever and was not worried about dogs. She said that she saw the brown dog before she was off crutches. She says that she had never seen the Kearneys walking dogs but that she saw someone from the Kearney’s walking the black dog.
Having seen the dog towards the end of July or early August she said she knew it from its size and colour. She approached the Kearney’s house and spoke with Mr. Kearney. The dog was there. She said she believed the dog disappeared after her solicitors wrote a letter to the Kearneys.
She said that she did not complain to the guards as she did not want to cause trouble with neighbours and that she had asked the dog warden not to proceed.
She said she had met Mrs. Kearney, the third named defendant, in the supermarket, who had approached her and asked her what had happened and she said nothing about the Kearney’s dog. The plaintiff said, that she did not know, at that time, that the Kearneys owned the dog.
She said that she had been standing at her gate with a neighbour, John McMahon, who spoke of Kearney’s black dog attacking him. Then she saw the brown dog going into Kearneys’. She was still on crutches but went over to Kearney’s house and met Mr. Kearney, the second named defendant, who said it was his son’s dog and that the dogs were getting out at night and that they had to get them back in between 2 and 3 a.m.
She denied that she had not been on crutches at that time and denied that it was the black dog outside Kearneys’ not the brown one.
She said that she had spoken to the dog warden later when she was not getting any better. In the beginning she did not want him to do anything. She agreed that she had made a good recovery. She accepted that she had not seen the brown dog, before the accident, the only dog she was aware of before then was the black dog.
She said there was no point in her reporting the matter until she knew who owned the dog. When she knew, she telephoned the dog warden.
She said the solicitor’s letter was sent in November, 2000.
In re-examination she said she remembered meeting Mr. Keaney on a Saturday – his daughter answered the door. Mr. Kearney was wearing a mustard-coloured, towelling bathrobe, and admitted that his son Ross owned the brown dog.
On the 10th June, 1999 Dr. McManus described her injuries as acute discomfort and referred her to Tullamore Hospital. By November, 1999 she was relatively mobile and was recommended to leave off the crutches. Osteoarthritis and rheumatoid arthritis were diagnosed in 2000 in St. Vincent’s. Her pelvis has healed. The fall aggravated the pain in her lower back. She was distressed. He was of the opinion that stress after such an accident could lead to rheumatoid arthritis though this could not be proved scientifically. The symptoms complained of by the plaintiff were not as a result of her fractured pelvis, but as a result of her lower back injury, but exacerbated by the fall. She had made good progress and the pain would tend to subside with time. There were a lot of other serious problems. He had not seen her for psychosomatic complications. She had had a second epidural, which gave some relief, on the 10th May, 1989. From that period to the fall in 1999 there were no records regarding her back. Osteo-arthritis had been diagnosed in 1986 and rheumatoid arthritis in 2000. He had seen her six times in the year 2000 and four times in 2001. Most of these consultations dealt with the accident and nerve pain in the upper left limb, lower back pain, and pain radiating down the back of her right leg radiating to her back. He had advised rest and anti-inflammatories and to stop work, to have rehabilitation and not to use too many pain relievers. She was making excellent recovery in her pelvis but the problems with her back persisted.
Evidence of Mrs. Scully
Mrs. Lillian Scully also lived in Sheehane and kept dogs. She said she recalls the Kearneys keeping dogs which were aggressive to her and to her dog. She remembers a black and a brown terrier type dog, both dogs were bigger than a Jack Russell. She remembers seeing the plaintiff on crutches. She remembers a notice on the pillar of Kearneys’ house saying ‘Beware of Dog’ going back a few years – fifteen or sixteen years ago.
The Kearneys have three children. They had a pup for their children until that dog died. She said that dogs always came out of Kearneys’ going back six, seven, eight or nine years before today. She said she changed her route past Kearneys’ as dogs came from Kearneys’, which caused her trouble and that it had happened regularly.
She said that some six or six and a half years ago the dogs disappeared suddenly but that they were there after the accident on the green where she and the plaintiff had seen them near Kearneys’. She never saw either the second or third named defendant walking the dogs.
She said she remembered the plaintiff pointing out to her the dog that had caused the accident.
Evidence of Mr. Quinlisk
Patrick Quinlisk, the plaintiff’s husband, remembered the Kearneys keeping dogs in 1999. He described them as large-sized, hunting terriers which he saw when crossing the green when two dogs came out of Kearneys’ yard. He said he had asked the Kearneys to keep them in. He had had a golden retriever, a gun dog, whom he exercised in a field but it was killed. He recollected that the Kearneys had a guard-type dog before, some ten to twelve years ago. He said that Ross, the first named defendant, had dogs for hunting and had a trailer and exercised the dogs out in Murphy’s field for the hunting of badgers. He said at the time of the solicitor’s letter the dogs disappeared.
Under cross-examination he agreed that in June 1999 another family, the Quinlivans, had an English sheepdog and another small terrier but not a brown dog. He said he did not tell his wife that he was aware that Mr. Kearney had a small brown dog.
Evidence of third named defendant
Mrs. Bernadette Kearney, the third named defendant, said that they did have a dog – a Doberman pup owned by her husband sixteen years ago. That dog was poisoned and died. The sign “Beware of Dog” was left there for years. She said that they did not get another dog – neither her husband nor her son. Her husband worked in buildings and was involved in a band at weekends. She herself was working and she did not know if other dogs were around the house.
She said she had seen the plaintiff in the supermarket on crutches and that the plaintiff simply said, “I had a fall”.
She said she was laid off between the 29th May and mid-August, 1999 and had no subsequent conversation with the plaintiff. She wasn’t at home when the plaintiff came to see her husband.
She said she did not own any dogs nor did she let anyone else keep dogs at her house.
Under cross-examination it was put to her that Mrs. Scully had seen the black and brown dogs. She said that they did not own a dog but noticed dogs going in and out of her house – dogs out loose – she had worked full-time for fifteen years in Nenagh, 22 miles away.
She said she did not say there were no dogs – not that she could recall. There was no reason for them to adopt dogs. They were not keeping two dogs at their house.
She said she does not know why she did not go to the plaintiff to correct the mistake that she had dogs. She said she went to see her solicitor rather than reply to the plaintiff’s solicitor’s letter. She said that the first named defendant, Ross Kearney, was not living at home in 1999 when he was eighteen, he was with his girlfriend. He did not keep dogs. She said that her solicitor had told her to report the matter to her insurance company.
Evidence of second named defendant
John Kearney, the second named defendant, said that he had not owned a dog for sixteen years when the children were six and seven years old. That dog was poisoned at three weeks. He was asked whether his son had kept dogs. He replied that the Doberman “was the only dog we had”.
He agreed that the plaintiff came over some time in the summer without crutches. He was 100% sure she was not on crutches. He was getting ready to play in the band. She said that “A black dog ran out of your house knocked me down”. He said, “I am sorry, we don’t have a dog”. Under cross-examination he said that he did not see her on crutches at any time, that he didn’t see any dogs in the house but did see dogs on the green. He said he did not speak to the dog warden. He said that, dogs could be at the gate or inside the gate, but nothing would come out of it as “we hadn’t owned a dog for eleven years”.
He said that his brushes were worn shooing dogs out. He agreed his wife would have had time between June and August to get in touch with the warden as she was unemployed at the time. The solicitor’s letter shocked him more than upset him. He did nothing about the letter. He said he could not get rid of something he did not have.
Mr. Kearney did not deny that Mrs. Scully had said that probably a brown and black dog came out of his premises and hassled her dogs.
Evidence of Ms. Murphy
Karen Murphy also lived in Sheehane and owned and Old English Sheepdog. She knew the plaintiff who had owned a Golden Retriever and before that a Labrador. She also knew Lillian Scully subsequent to June, 1999. She said there were over a hundred houses in Sheehane, half or more had dogs as there were a lot of children, a few houses would have had more than one dog. The Kearneys lived diagonally across from her and for thirteen years she knew them, having had a lift with Mrs. Kearney to work. She said that in June, 1999 neither Mr. nor Mrs. Kearney nor Ross owned dogs. She never knew them to own dogs. She said that Ross was not living with the family. She said he was gone around Christmas 1998. She never saw the Kearneys with dogs. She said that she had problems with dogs but never reported it. They would run in and out of her gates.
She said that Ross did not hunt as there was nowhere to hunt.
Evidence of Ms. Maher
Bernadette Maher lived next door to the defendants for 22 years. She also believed that there were some 68 houses in Sheehane. In June, 1999 she owned a Labrador. The Kearneys did not own any dog – neither brown nor any other. A good few houses owned dogs. There were always dogs running around, “I’d just run them out” she said. There was a time in Kearneys’, she said, when they owned a Doberman some sixteen to seventeen years ago, for their children. Since then they had not owned any dogs.
She said that Ross moved out the Christmas before 1999.
In cross-examination she said she was a very good friend of the Kearneys as they were in Sheehane for the same length of time. She does not remember Mrs. Kearney being home in the summer of 1999.
She kept her Labrador on a chain. The Kearneys had had a place for their Doberman with a fence around it. There were no more than 68 houses, 20 to 30 houses were around the green, a lot with dogs. She had often seen Mrs. Scully with her two dogs but did not see her that often as she was working.
She did not remember the black and the brown dog. There were loads of black and brown and black and white dogs. She said that the day before this trial there was a brown dog in her back garden. She did not know who owned it.
Ross moved out at Christmas time. She remembers giving presents to Ross at Christmas, it could not have been the following year. She continued giving presents.
Decision of the Court
.1 The Control of Dogs Act, 1986, is a radical piece of legislation for a country where dogs proliferated. The very title of the Act is on control rather than on registration (which is a requirement from the previous legislation).
The presumption of ownership is one of those radical elements in the Act that deem ownership on occupiers of any premises where, not alone the dog is kept but is permitted to live or permitted to remain at any particular time. The onus of proof is on the occupier to prove to the contrary.
The issue of ownership in this case is critical.
The court has to be satisfied, on the balance of probabilities, from the evidence of the second and third named defendants that none of the three defendants kept a dog or permitted a dog to live or to remain for any particular time in their premises.
.2 Plaintiff’s evidence
There is no dispute regarding a small medium brown dog tugging at the plaintiff causing her to lose her balance and fall causing her an injury which exacerbated a previous complaint.
In relation to the ownership of the dog she said that in mid-August she had seen the dog going into the defendants’ premises and went on crutches and spoke with the third named defendant who said that the dog was the son’s (the first named defendant). The dog was at the door. The third named defendant admitted meeting her but denied that he had said that the dog was present or that it was his son’s dog. He said that she was not on crutches.
Unfortunately the first named defendant did not give evidence in relation to whether he was or was not in his family home in June, 1999. His testimony would have been of help to the court in relation to whether he had a dog or hunted or not.
.3 Mrs. Kearney, in her evidence, said that the family did not get another dog when the Doberman pup died sixteen years beforehand. She did not own any dogs nor let anyone else keep dogs at her house. Under cross-examination she said that she had noticed dogs out loose going in and out of her house. There was no reason for them to adopt dogs.
.4 Mr. Kearney said the Doberman was the only dog they had: they had not owned a dog for eleven years. There were dogs all over the place. He did not have time to get the warden to get rid of the dogs.
He did not deny that a dog coming from his house may have hassled Mrs. Scully’s dogs.
.5 Both Ms. Murphy and Ms. Maher gave evidence that the Kearneys did not own dogs but that there were dogs around. Both said that the first named defendant was not living with the family and had moved out in Christmas 1998.
.6 Onus of Proof
The onus is on the defendants to discharge the presumption that they were owners of the dogs. The defendant must prove that they did not keep dogs or allow them to remain in their premises.
Given the radical nature of the legislation it would seem to me that the simplest way of rebutting the presumption of ownership was to tell the plaintiff, at the time she met the second named defendant, that not alone did they did not own dogs but that they did not permit dogs to live or remain on their premises. The second named defendant simply said “[W]e don’t have a dog” when the plaintiff had said that a dog had come out of their gate and knocked her down.
A simple response to the solicitor’s letter of November, 1999 would, of course, have been a further opportunity to rebut the presumption of s. 9 of the Act.
.7 The evidence of Mrs. Lillian Scully is, to my mind, compelling with regard to the presence of dogs in and around the defendants’ premises. She had identified a black and a brown dog. She had referred to the black dog as having a mischievous propensity.
I accept, of course, the second and third named defendants’ evidence that they did not have or own a dog. That evidence is corroborated by Ms. Murphy and Ms. McMahon. However, as is clear from the definition section of the Act, ownership is defined very widely indeed in relation to the occupiers of premises.
John Kearney’s evidence of brushing the dogs out indicates the presence of dogs at his premises, whether these were strays or not. If they were strays then the defendants should have been aware of the risk of liability once they were kept or allowed to remain on the premises. There is provision under the Act at s. 13 that any person who finds and takes possession of a stray dog is obliged to return the dog to its owner, deliver it to a dog warden or detain the dog and give notice in writing to the Member in Charge of the nearest garda station or to a dog warden. In such a case the occupier would not be deemed to be the owner until one year has passed (see 13(4)).
.8 The first named defendant
I am satisfied from the evidence of several of the witnesses that the first named defendant was eighteen at Christmas 1998, some six months before the accident. Several of the witnesses said that he had left home to be with his girlfriend and some said that he did not have dogs. The evidence in relation to his having left home was given by Karen Murphy, Bernadette Maher and, in re-examination, by his mother, the third named defendant. Mrs. Maher referred to giving presents to Ross at Christmas, denied that he could have moved out the following year and she told the court that she continued giving him presents at Christmas. It does not seem to me that the certainty of this evidence is compatible with the vagueness of the evidence regards presence of dogs around the area.
The evidence in relation to the first named defendant having left the premises in Christmas 1998 when he was 18 rests on the bare assertion of his mother, the second named defendant and Ms. Murphy and Ms. Maher. The latter corroborated her recollection by reference to Christmas presents which she continues to give to the first named defendant.
There appeared to be less certainty regarding the presence of dogs in and about the defendants’ premises. Ms. Maher said that the Kearneys did not own dogs but did not remember Mrs. Kearney being home during the summer of 1999. Ms. Murphy said she never saw the Kearneys with dogs.
The first named defendant did not give evidence.
The court, on the balance of probabilities, finds in the circumstances that the defendants did own the dog in question in that they as occupier or occupiers one or more of them permitted the dog to live or remain at his, her or their premises.
None of the defendants have proved, on the balance of probabilities, that they were not owners of the dogs that had attacked and caused the plaintiff the damages which she suffered.
The dog was not on the premises of the defendants at the time of the incident and was not accompanied by the owner or any person and, accordingly was not under effective control as required by s. 9 of the Act.
It follows that the defendants are liable for the damage caused pursuant to s. 21(1) of the Act. In terms of liability the defendants are jointly and severally liable.
.9 Damages
I have carefully considered the two reports of the plaintiff’s General Practitioner, Dr. George McManus, and the report of Mr. Sheehan the orthopaedic surgeon of 10th November, 2003.
Mr. Sheehan found a fracture to the pelvis requiring hospitalisation. The plaintiff was on crutches for seven and a half weeks. She had previous spinal surgery for a disc prolapse in 1982.
She had some intermittent pain since then. At the time of his report her pain was in the medial aspect of her right thigh with occasional flares up of that pain.
Her interior pubic ramus may have fibrous union. There was virtual fusion of L4 and 5 vertebrae and a gross narrowing of L4/S1 disc. She now moved freely in his opinion. The previous back problems, unrelated to the present incident, continue.
The special damages in relation to the plaintiff’s being out of part-time work had been agreed at €1,600.
Having regard to the medical reports I would assess general damages in the sum of €16,000.
There will be a decree in the sum of €17,600.
O’Reilly v. Lavelle
[1990] 2 IR 372
Johnson J.
This is an appeal from a decision of the Circuit Court held at Castleblayney in the County of Monaghan on the 24th October, 1989.
This is an action taken by the plaintiff motorist who after dark at about 10.00 p.m. on the 25th June, 1987, at Tullybruck, Clontibret in the County of Monaghan collided with an animal, a fresian calf. The animal was killed and the plaintiff’s motor vehicle was severely damaged and he is claiming the cost of the repairs and damages. The defendant claims that the accident was caused by the negligence or contributory negligence of the plaintiff.
On the opening of the case counsel for the plaintiff submitted that while he had not specifically pleaded the doctrine of res ipsa loquitur he was entitled to rely on the doctrine provided his pleadings were adequate and that the facts proved show the doctrine to be applicable. This was strenuously opposed by counsel for the defendant.
In my opinion the submissions made on behalf of the plaintiff are correct and the law on this particular point of law has been well stated by Griffin J. in Mullen v. Quinnsworth Ltd. [1990] 1 I.R. 59 where he states at p. 62 of the report:
“This principle was stated as long ago as 1865 by Erle C.J., in Scott v. London and St. Katherine Docks Co. (1865) 3 H. & C. 596. There the Chief Justice said at p. 601:
‘There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.’
In the instant case the floor was under the management of the defendant, or its servants, and the accident was such as, in the ordinary course of things, would not happen if the floors are kept free from spillage of this nature. The onus is therefore on the defendant to show that the accident was not due to any want of care on its part. On the hearing of the appeal, the defendant objected to the plaintiff relying on this maxim because it was not pleaded. In my opinion, this doctrine does not have to be pleaded before a plaintiff may rely on it. If the facts pleaded and the facts proved show that the doctrine is applicable to the case, that is sufficient see Bennett v. Chemical Construction (G.B.) Ltd. [1971] 1 W.L.R. 1572.”
Section 2, sub-s. 1 of the Animals Act, 1985, provides:
“So much of the rules of the common law relating to liability for negligence as excludes or restricts the duty which a person might owe to others to take such care as is reasonable to see that damage is not caused by an animal straying on to a public road is hereby abolished.”
Counsel for the plaintiff further submitted that as there has been no reported decision either in the Circuit or High Court on the Animals Act, 1985, he was obliged to refer to an article in the Gazette of the Incorporated Law Society of Ireland July/August, 1988, dealing with the only reported case on the matter by District Justice Patrick J. Brennan in District No. 3 who saw s. 2, sub-s. 1 of the Act of 1985 as creating a res ipsa loquitur presumption (see McCaffrey v. Lundy (Swinford District Court, 8th April, 1988)) and who went on to say:
“. . . that where a plaintiff gives evidence of his motor vehicle colliding with animals straying on the highway and is able to identify the owner of the animals, then there is a prima facie case to be answered by the landowner to rebut the presumption of negligence on his part. The burden on the landowner is, of course, not one of strict liability, but it would be necessary for him to prove that he had exercised reasonable care, maintained his fences in stock-proof condition and taken all reasonable steps to ensure that his stock did not stray on to the public highway . . . . In such an example, the burden should shift from the plaintiff because of the impossibility in many situations, of the plaintiff ascertaining the condition of the landowner’s fences, which knowledge is peculiar to the landowner”.
This article having been read and considered by counsel for the defendant the plaintiff went into evidence.
The plaintiff in evidence stated he was driving along the main Castleblayney/Monaghan road on the night in question at about 50 m.p.h. with full headlights on, that when suddenly from his left hand side of the road 8 to 10 cattle darted across the highway into his path, he immediately applied his brakes but failed to avoid a collision with a fresian calf which was thrown up on the bonnet of his motor vehicle on impact but he believed he also struck another animal which continued across the highway with the rest of the animals who disappeared up a laneway which divided the defendant’s lands.
The animal fell from the bonnet of the plaintiff’s motor car when he came to a halt and fell to the ground dead some feet from the plaintiff’s vehicle which had come to a stop on the hard shoulder of the highway. The animal was identified as the defendant’s property by its ear tag and admitted to be so by the defendant’s son who arrived at the scene of the accident some twenty minutes later. A search failed to find the other animals when the gardaà arrived but an examination of the roadside fence and gate of the defendant’s field which was on the right hand side of the highway showed no defects by which the animals escaped. The gate was securely locked by an ordinary sliding bolt. However, the fencing along the laneway was not checked.
A Mr. Burke gave evidence that he observed animals grazing on the side of the highway at the spot where the accident occurred, when he travelled this road an hour earlier that evening. The accident had already taken place when he was returning home at about 10.30 p.m. and he observed the dead animal on the road but saw no other animals at this time.
A garda witness stated that the plaintiff’s car was badly damaged and the fact that the dead animal was the property of the defendant. He further stated that the defendant, who also had arrived at the accident scene, showed him his field on the right hand side of the highway which contained his cattle and that examination of the gate and fencing facing the highway showed they were not defective in any way but that he had not examined the fencing running up the laneway. The garda also stated that the accident occurred on a straight stretch of roadway which measured 25 ft in width and with a hard shoulder of 6 ft on each side with a further grass verge and that the plaintiff’s car was on its correct side of the road on the hard shoulder where the accident had occurred. He further stated that the lands in the area were such as that they required fencing.
This concluded the evidence for the plaintiff and counsel for the defendant applied for a direction on the grounds that no negligence had been established against the defendant. He referred to s. 2 of the Animals Act, 1985, and stated that there was no evidence that the defendant had not taken reasonable care, in that his fences were adequate and that the gate and fencing facing the roadway were sound, unless I was to hold that the doctrine of res ipsa loquitur applied. It was further submitted by Mr. Hanratty that while Mullen v. Quinnsworth Ltd. [1990] 1 I.R. 59 permitted a plaintiff to raise the doctrine of res ipsa loquiturwithout expressly pleading the same, it had not altered the doctrine and that in this case, it was possible that some stranger could have left the gate on the defendant’s field open and this could explain and show how the accident could have happened without negligence on the part of the defendant and therefore the doctrine would not apply.
I am most surprised that there is no reported decision in this important issue of straying livestock and I hold that the Animals Act, 1985, has changed the law in this matter. The change which this Act has brought about was long overdue and I refer to the doctrine of res ipsa loquitur as stated by Erle, C.J. as hereinbefore stated. District Justice Patrick J. Brennan was absolutely correct in his view of the law as above stated on the matter. Cattle properly managed should not wander on the road and therefore the burden of proof in this case shifts to the defendant to show that he took reasonable care of his animals. I believe that there is no matter more appropriate for the application of the doctrine of res ipsa loquitur than cattle wandering on the highway.
The defendant then gave evidence that he had passed the accident spot just prior to the accident and there were no cattle on the roadway and that all his cattle were then in his field. He had examined his gates and fences and they were in sound condition and could give no explanation as to how his animals escaped from and returned to, his field and he believes that it was only the dead calf which had escaped.
The defendant’s son Eamonn corroborated his father’s evidence and a neighbour gave evidence that his lands adjoin those of the defendant and in 10 years the defendant’s cattle had never broken into his land and he had never known of the defendant’s cattle being on the road in that period either. This concluded the evidence for the defence.
I hold the following facts proved on the balance of probabilities.
(1) That the plaintiff had been travelling on the highway towards Castleblayney when the accident occurred.
(2) That there were 8 to 10 animals straying on the side of the highway.
(3) That the animals were observed by Mr. Burke earlier in the evening on the side of the road at the accident spot.
(4) That 1 calf was killed when it collided with the plaintiff’s motor vehicle which was badly damaged.
(5) That the rest of the animals ran across the roadway and up the laneway which divides the defendant’s lands.
(6) The defendant was the owner of the animals in question.
(7) That the onus of proof shifts to the defendant in these particular circumstances.
(8) That the defendant failed to discharge the onus of proof that his fencing on this field was not defective in that his cattle escaped from and returned to this field on this occasion.
(9) That it was highly improbable that some stranger opened the gate of this field and remained there, until the animals at their leisure returned, and he then closed it. I will allow the plaintiff’s appeal and award him the damages claimed in his civil bill.
Mallon v G. S. & W. Ry. Co.
Supreme Court of Judicature.
Court of Appeal.
19 July 1893
[1893] 27 I.L.T.R 125
Walker, C., FitzGibbon, Barry L.JJ.
Walker, C.
On the argument before us it was first contended that there was no evidence of negligence on the part of the defendant company. The duty of the defendants towards the plaintiff, a lawful passenger, was to keep the platform reasonably safe for him, and not to expose him to risks that he naturally could not anticipate. I cannot but think that the conveying of a dog along a platform, with a chain which became an obstacle, two feet in length, and in a manner that persons approaching could see neither the chain nor the dog, was some evidence of negligence. The defendants cannot find refuge in their having imposed on the porter so many duties. No doubt, if the plaintiff’s conduct amounted to contributory negligence, directly causing the accident, the case should have been withdrawn from the jury. The use of the word “contributory” often causes difficulty. I cannot think that the plaintiff caused the injury by not seeing or expecting a dog on his path abnormally chained to a barrow. It has been said here that the damages were too remote. It was stated that there was no proof of knowledge that the dog was likely to bite—that is so; but I think the doctrine of scienter has no application to this case. Once it is shown that the defendant company by their negligence caused the plaintiff to trip over a chained dog, whether the animal be a dog, or a horse, or a cow, if the animal be put into a position in which it may be made aggressive, the defendant, whose conduct so affects the disposition of the animal, is liable for the natural consequences of such change of disposition. This is illustrated in reference to one of these animals, a horse, in Lee v. Riley (18 C. B., N. S. 722.) In this case I think the bite was not unreasonably the consequence of the act of negligence of the defendant company. The question of the damages has already been dealt with. It is only because we differ from the majority of the Judges in the court below that we have thought it necessary to state the reasons that have led us to a different conclusion; and that is, that there shall be a new trial if the plaintiff do not consent to take the verdict with the damages reduced to £50.
FitzGibbon, L.J.
The first question is whether there is evidence to support the finding of the jury that the defendants are guilty of negligence, and the second, and only other question, is, whether the fact of the biting is too remote a consequence of the way in which the dog was being led to involve the defendants in any liability. These questions must be kept quite distinct. I can see no necessary evidence of negligence in the hurry of the plaintiff going for his ticket, nor any demonstrable negligence on his part because he fell over the chain. The negligence point being out of it, there is remaining the question of remoteness. There is no distinction between tripping over a chain with which the dog was being towed and tripping over the animal itself. It is conceivable that the dog could, in a canine sort of way, plead son assault demesne. The scienter does not apply to a case such as this, where a quiet dog, being irritated, snaps at and bites the person taken to be the instrument of the irritation; no foresight on the part of the plaintiff would have prevented the biting. The verdict cannot be entered for the defendants, but we will give them a new trial, for which also they ask in the alternative, on the ground of *125 excessive damages, unless the plaintiffs consent to our reducing the amount from the £100 to £50.
Barry, L.J.
This case has been tried and argued largely upon one question, and one only: whether there was evidence of negligence in the manner in which this interesting dog was towed, as FitzGibbon, L. J., has felicitously described it. I cannot agree with O’Brien, J., that it was quite as safe to carry the dog in that way as holding him directly by the chain. In the latter method obviously the porter would have more control over the acts of the animal, whereas he had no control over the dog by the mode of conducting him resorted to in the present instance. The porter had not the dog in view, nor could the dog see the porter. It has been contended for here that the plaintiff ought to have produced evidence of the unsafety of such a mode of leading a dog across a crowded station. When the case was at trial the absence of expert evidence on that subject was not pointed out. But it is most unreasonable to raise any such objection, as if the men on the jury could not be as good judges of that as anybody else. Another objection taken by O’Brien, J., was that this was not directly owing to the negligence of the defendants, but to a combination of circumstances. That, however, is all subject to the question, was there negligence on the part of the company? O’Brien, J., asks is the company bound to have a special staff of porters for the purpose of taking dogs across the station? No such proposition has been put forward here. The only allusion to the insufficiency of the staff has been on the part of the defendant’s own witnesses—this poor man, the porter, in order to exonerate himself, has enumerated his various functions. If a company maintain a staff that happens on some occasions to be insufficient, they must do so at their own risk. The judgment delivered by Andrews, J., shows that he hesitated greatly. I think it is sufficiently proved that in this case there was a question to go to the jury, for while Holmes, J., and O’Brien, J., thought that it was a good way to carry a dog across the station, Gibson, J., was of opinion, as we three here are, that it was a bad method. There is no question of scienter here, for that only arises where the biting is of a voluntary character, and unprovoked. A clearer case for asking a jury their opinion rarely has come into a Court. There is no principle involved in the case. We say to the defendants take a verdict against you for £50, or a new trial.
William Forster v Roy Donovan
, Ireland and the Attorney General
Pre-1986 Act
High Court
15 April 1980
[1980] 114 I.L.T.R 104
Costello J.
15th April 1980
Costello J.:
In my opinion the plaintiff must succeed in his claim. The questions are whether the defendants were guilty of negligence and whether the plaintiff was guilty of contributory negligence. I have sympathy for the first-named *105 defendant but when he keeps a dog, like the one referred to in the evidence, he runs the risk of some person being injured. This defendant had knowledge of the propensity of the dog and, accordingly, the plaintiff must succeed against him and there must be a decree against him.
A question then arises as to whether the Post Office are liable due to their failure to warn the plaintiff of the presence of the dog on the first-named defendant’s premises. I am satisfied that Mrs. Donovan did telephone the day before to the local post office but there was a break in communications there due to this being the vacation period. The warning in the sorting office by means of the pink card system was not suitable in the circumstances as the plaintiff was a share postman. There was, accordingly, a breach of duty on the part of the Post Office in not warning the plaintiff. Thus the plaintiff must also succeed against the second and third-named defendants and there must be a decree against them.
Then the question of contributory negligence on the part of the plaintiff arises. Had he been informed of the existence of the dog on the premises he would not have proceeded up to the hall door. I accept his evidence that he did not see the post box or the warning notice. Accordingly there was no contributory negligence on his part.
A question now arises as to whether there should be an order for indemnity or contribution as between the defendants. I have to consider how the degrees of fault should be apportioned seeing that the plaintiff is a postman. The first-named defendant was required to keep a dog to protect his home and, in the circumstances, I hold that full responsibility rests with the second and third-named defendants. Accordingly, I give a decree for the agreed sum of £1,259 damages and costs with benefit of an order for contribution amounting to full indemnity to the first-named defendant.
Fleming v Graves
Circuit Cases.
18 March 1897
[1897] 31 I.L.T.R 143
Gibson J.
Belfast, March 18, 1897
Gibson, J.
The 28 & 29 Vict., c. 60, s. 1, enacts that “the owner of every dog shall be liable in damages for injury done to any cattle or sheep by his dog.” Now, in this case there was no direct injury to the sheep by the dogs, such as biting or worrying, but I think the statute covers cases of indirect injury, such as the present, or where sheep might have been driven through terror over the edge of a cliff by dogs that were many yards away. People who keep sheep and cattle have a cause of action if their sheep and cattle are killed through being chased by the dogs of their neighbours. In this case the dogs chased the sheep and drove them from natural terror through the fences, which were reasonably sufficient. The plaintiff was not under any obligation to the owner of the dogs to have the fence any stronger than it was. The sheep made their way down the public road, up the embankment to the railway line, and there were killed by a passing train. The accident is attributable to the misconduct of the dogs in chasing the sheep in a field where they, the dogs, had no right to be, and accordingly the owner is responsible (Sneesby v. Lancashire and Yorkshire Railway Co., L. R. 9 Q. B. 263). I reverse the decision of the learned County Court Judge, and give a decree for £21 and costs.
Kavanagh v Stokes
Pre-1986 Act
[1942] IR 596
Gavan Duffy J.
The plaintiff was an invitee and paying guest staying in the defendant’s house, and in my opinion it was the duty of the defendant in this case to provide reasonably safe access from the road to the hall-door of her house for people staying in the house, and in my opinion she failed to do so.
I think that negligence has been proved and that, in the special circumstances, there is no need to examine the doctrine of scienter, though there was evidence of a previous bite by the dog in question.
The dog was a largish sheep dog, kept as a watch-dog, and its principal duty as such would be to guard the house during the night. The dog hardly knew the girls, of whom the plaintiff was one. They were guests in the house, and had only arrived there the day before. They went to the neighbouring town of Gorey for a dance and told the defendant that they would be back about 11 or 11.30 p.m., and arranged that she should leave the hall-door on the latch for them. They came in about 11.30 p.m. It was the watch-dog’s duty and nature to give warning of intruders at night, and of course it might go further than give warning when a number of strange people came to the house late at night.
It is not unusual for young people returning from a dance to be somewhat noisy, though these girls seem to have come in quietly enough, and I think that the defendant, in leaving the dog at large when she knew that the girls, new visitors, would be returning home at a late hour, was careless for the safety of her guests on a dark night, and failed to act reasonably in leaving the dog at large, where he might well be a danger to the girls.
There was evidence that the dog was a dog that rather distrusted strangers. The girls all came in together; four of them ran in, because the dog barked excitedly, but the plaintiff stayed behind to close the gate and the dog bit the plaintiff. There was no evidence before me that the plaintiff had irritated the dog; the suggestion was that she patted him; and I think that the evidence of the plaintiff generally was correct.
Mr. Crivon referred to the observations of Greer L.J. in Sycamore v. Ley (1), which are in point.
I hold that, in leaving this watch-dog out under the circumstances that I have outlined, the defendant failed in her duty to take reasonable precautions to ensure the safety of, or prevent danger to, the plaintiff and those accompanying
her, and that there was no negligence on the part of the plaintiff.
There must be judgment for the plaintiff for the following special damages:£8 8s. 0d. fees due to Dr. Freedman, £3 3s. 0d. Mr. Pringle’s fee, £3 18s. 0d. loss of earnings, and 19s. 6d. for medicine. Over and above these items I shall allow £30 general damages making a total of £46 8s. 6d.
Solicitors for the plaintiff: Harris and Leon.
Kavanagh v Centreline Ltd
Pre-1986 Act
[1987] ILRM 306
Barron J: Both plaintiffs seek damages for injuries sustained following an attack on them by a Doberman Pincher dog on the night of the 23/24 January 1984. Each sustained these injuries in separate incidents.
The first plaintiff who was out jogging in a public park at 11 pm on that evening found that his track suit was caught by something. When he turned around he found that it was caught by a dog. Although he himself has purported to train Alsatian dogs as handler dogs he failed to recognise the dog as a guard dog. He panicked and fought the dog. As a result the dog as it was trained to do held him by its mouth first below his left knee and then on both arms. There was a very considerable struggle which resulted in wounds to his left leg and right arm which required suturing. He got away from the dog and went home.
Later that night the second plaintiff saw the dog in the same area as he got off a bus and was making his way home. He became apprehensive and clearly drew the attention of the dog because it followed him home. As he was unlocking his front door the dog gripped his right leg below the knee. When the door was opened he rushed to get in and then tried to slam the door against the dog. In doing so his left arm was caught by the dog. He freed himself. Efforts were then made to catch the animal. He was fed frozen hamburgers and was caught by a car being driven over a lead which was attached to its collar.
The guards had been notified by both plaintiffs of the attacks upon them. They arrived and took the dog away. The dog itself had been reported stolen by the second named defendant to Kevin Street Garda Station three days before these incidents. Thisdefendant was notified the following morning by the Garda that the dog was in their care and he came and took his dog away.
He gave evidence that the dog was used as a guard dog at the premises of the third named defendants. It was trained to attack and hold intruders. It was trained not to accept food from anyone other than its handler and to attack and hold anyone else offering it food. On the night of 20/21 January it went missing. There was no sign of any damage to the fencing around the yard nor any sign of anyone having got in. Abouta month after these incidents it again went missing. It was found that it had been stolen by a youth living in the neighbourhood with whom it had apparently gone willingly. Had the animal been properly trained, this should not have happened. It also appeared that a woman who passed the premises regularly had been accustomed to giving it food.
It is clear from the evidence that the dog was specially trained to attack and hold people in certain circumstances. It may be that its training was inadequate, but I do not regard this as being material. It is equally clear that the two incidents which occurred were samples of the animal following its training. I am satisfied that there was no reason to suppose that the dog would attack anyone if it escaped. The second named defendant gave evidence to this effect and Garda Donnelly of the Garda Dog Handling Unit gave evidence that he would not expect the dog to bite other than on command.
The liability of the owner of an animal for damage caused by that animal if it escapes is determined by the nature of the animal as known to the owner. Some animals are presumed to be of such a nature that they are expected to cause damage if they escape; others are of such a nature that they are not expected to do so in such circumstances.
Animals in the latter category may, if they are known to have such a propensity to cause damage, be treated as being in the former category.
In Behrens v Bertram Mills Circus Ltd [1957] 1 All ER 583, the plaintiffs were injured when an elephant owned by the defendants knocked down a booth in which they were seated. The elephants were trained circus elephants and could not have been expected to behave as they did. They did so only because they were frightened by a barking dog. Nevertheless the owners were held fully responsible for the injury to the plaintiffs since they had an absolute duty to ensure that elephants as animals ferae naturae if they got out of control did not cause damage. It was held that it was no defence that the animals were not dangerous in fact or that their behaviour was caused by the wrongful act of a third party. A liability arose because the animals were temporarily out of control and were of a class for which there was strict liability. In such circumstances, it is immaterial whether injury is caused by vice, playfulness or mere accident: see Goddard CJ in Wormald v Cole [1954] 1 All ER at p 688.
In the present case, the defendants’ dog was not a dangerous animal per se. Nevertheless, it had a propensity known to its owner special to it, which was, that it was trained to attack and hold in certain circumstances. In my view, the owner of such an animal is strictly liable for damage caused when out of his control, certainly when such damage arises from its known propensity. In the present case, the injuries to the plaintiffs were caused by reason of this known propensity since they were caused while the animal was seeking to attack and hold. In my view this makes the defendants liable. Since it is a case of strict liability, it is not a defence that such behaviour could not reasonably have been anticipated nor that its escape was caused by the wrongful act of a third party: see Behrens v Bertram Mills Circus Ltd [1957] 1 All ER 583.
In the circumstances there will be a judgment for the plaintiffs.
Duggan v Armstrong
Pre-1986 Act
June 1992 Supreme Court McCarthy J
The plaintiff was born on 8 December 1976 and on 21 April 1984 was on holiday with her family for the Easter weekend at Redcastle, Co Donegal. On that date, a Saturday, she was in the foyer of the hotel when she was attacked by a mongrel alsatian dog. She had gone to the hotel with other children, including her cousins with whom she was staying, to use the leisure facilities.
With her father as next friend she sued the owner of the hotel, the first defendant, (Mr Armstrong) and the manager, the second defendant, (Mr Tighe) alleging negligence and breach of duty (including breach of statutory duty), both in and about the management and maintenance of the hotel and the keeping and training of the dog. She alleged that on that date and on other dates the dog exhibited a mischievous and/or a vicious propensity a fact of which both defendants knew or ought to have known. All the allegations were put in issue in a joint defence filed on behalf of both defendants; the action was tried in the High Court before Egan J and at the conclusion of the evidence called on behalf of the plaintiff he acceded to an application for a non-suit on behalf of both defendants. The plaintiff appeals and has argued the same three bases of claim as put forward in the High Court:
(l) That there was, in particular from the testimony of Jalisco Shortt, the plaintiff’s cousin, evidence of a vicious propensity on the part of the dog.
⦁ That, as in the case of Kavanagh v Stokes [1942] IR 596, the defendant occupier had failed to provide reasonably safe premises.
⦁ That in breach of s 4 of the Hotel Proprietors Act 1963, the first defendant as proprietor of the hotel had failed to take reasonable care of the person of the guest (the plaintiff) and to ensure that, for the purpose of personal use by the guest, the premises were as safe as reasonable care and skill can make them.
⦁ Scienter
The defendants contested both the alleged vicious nature of the dog and their knowledge, in particular, the knowledge of Mr Tighe. Jalisco Shortt had testified that:
“it appeared a vicious dog because it was always growling and anytime I went up there it would run at me and I usually got on my bike and got out of there or Daragh [Mr Tighe’s son] would come out and call it away.”
Daragh Tighe was about nine years old at the time. Evidence was also given by other witnesses as to seeing the dog trying to mount young girls, apparently a known habit of what are called male dominant dogs. This was analysed in evidence by an expert in pet animal behaviour.
In my view there was evidence to support the conclusion that the dog had a mischievous or vicious propensity. One does not have to wait for the growling and frightening dog to bite somebody in order to know that it may do so; the requirement of scienter is not that the dog will bite somebody but that having displayed a vicious propensity it may do so. Whatever about the direct knowledge of Mr Tighe, certainly there was evidence that his nine year old son had knowledge of complaints being made about the dog; such knowledge must be imputed to the father. In this regard I would express approval of the views of Judge Davitt as he then was, in the Circuit Court in Bennett v Walsh (1936) 70 ILTR 252. No submission was made to this Court as to whether or not the doctrine called scienter survived into modem times and, in particular, survived the guarantees contained in the constitutional framework, but, in my judgment, it goes against commonsense that the family of the owner can have an intimate knowledge of a dog’s vicious propensities but the owner himself can escape liability unless one can prove direct communication to him.
⦁ Common law liability
This is the liability of the occupier of the hotel premises to a guest on the premises. No niceties of distinction between licensee and invitee arise here, if they could arise at all anywhere. It is not in issue that the plaintiff was on the premises as a hotel guest. In an area where a large number of people, including children tended to congregate, a fairly large dog with a known propensity to jump on children, if not to growl and chase them, was permitted to run free. What some might think inevitable happened – a child got bitten. The knowledge of the manager, Mr Tighe, is the knowledge of the owner. There was clear evidence of a breach of the duty owed to the plaintiff as a guest.
⦁ The statutory duty
It is suggested that s 4 of the 1963 Act creates an additional duty on the proprietor of hotel premises. I find it difficult to discern the nature of that additional duty for the purposes of this case. I am content to say that as I have indicated in respect of the common law duty equally well there was evidence to support a finding of a breach of statutory duty.
I would allow the appeal and set aside the order of the High Court. In the light of the evidence relating to the plaintiff’s injuries in my opinion the court should hear submissions as to whether the action should be further heard in the High Court or remitted to the Circuit Court.
Maguire v Balfe
21 February 2003 Circuit Court Judge McMahon:
The plaintiff was bitten by a dog when on premises rented by the defendant. The defendant ran a skip hire business and frequently when the skips were full of rubbish he parked them on the rented premises. The defendant had given the plaintiff and his sons permission to scavenge the skips for salvage and the plaintiff had visited the site on several occasions with his sons for that purpose.
On the day he was bitten, the plaintiff said he attended the yard in question with his sons for the purpose of searching a couple of skips for “bits and pieces that might be of use for the house”. The three arrived in a van and when the plaintiff got out with one of his sons he was met by a Mr O’Reilly, whom the plaintiff described as “the caretaker”. When the caretaker requested the plaintiff and his sons to leave the premises, the plaintiff informed him that the “Boss” had given them permission to go through the skips. The caretaker nevertheless insisted that they leave and after some moments of discussion, Mr O’Reilly turned away, and without warning released a guard dog from a shed on the premises. The dog attacked the plaintiff and bit him on his left arm causing him injury. This version of events given by the plaintiff was confirmed by the evidence of the plaintiff’s two sons, one of whom said he was afraid to get out of the van because the dog was so vicious. The defendant was not at the scene at the time, and strangely enough, Mr O’Reilly did not appear as a witness. In these circumstances I must accept the plaintiff’s version of these events since it was the only evidence before the court as to what happened in the yard that morning, and it was not seriously challenged in cross-
examination.
As to what preceded this incident there was a direct conflict of evidence between the plaintiff and defendant. The plaintiff said he had been given permission to attend the property several weeks before, and that he and his sons had been scavenging on the property several times prior to that day. The defendant admitted that he had given permission to the plaintiff sometime earlier, but he stated in court that he had revoked this permission at a later stage. In particular the defendant said on the morning of the incident, he was on the premises when the plaintiff and his sons arrived. He said he told them not to go in, and when he left the yard he slotted the bolt on the large gate which controlled the entry to the property. The defendant admitted that he was the occupier of the premises and also affirmed that there was a notice fixed to the gate which read “Beware of Dog”. The defendant also acknowledged that he gave Mr O’Reilly authority to be on the property and that he had a recent agreement with O’Reilly that in return for giving him sole scavenging rights, Mr O’Reilly was to keep an eye on the property and
was permitted to keep the dog on the premises.
The plaintiff said that the defendant visited his home on the night after he was bitten, and admitted that he owned the dog. He told the plaintiff that he need not worry as the dog “had been injected”. The plaintiff understood this to be some sort ofreassurance that he need not worry too much about the puncture wound on his arm as the dog had the required vetinary inoculations. The defendant denied that he admitted ownership of the
dog or that any such assurance was given.
The conflict of evidence on these matters between the plaintiff and the defendant is not ofhuge significance in this case, for even if the defendant’s version of events is true, and the plaintiff was trespassing at the time, I would still find for him on the facts before me. In sum, in circumstances such as are before the court in this case, the defendant’s agent is not entitled to release a vicious dog without warning, intending,, or, at least
recklessly disregarding the clear probability, that the plaintiff would be attacked by the animal.
The law
At the outset it should be noted that this is not a case which falls to be determined on the principles set out in the Occupiers’ Liability Act 1995. That act is primarily concerned with injuries caused to entrants by structural defects on the defendant’s premises. The present case is governed principally by section 21(3) of the Dogs Act 1986 and by the
common law.
Section 21(3) of the 1986 Act reads as follows:
“A person is liable in damages for any damage caused by a dog kept on any premises or structure to a person trespassing thereon only in accordance with the rules of law relating to liability for negligence.”
It is my opinion that this is not affected by the principles of the Occupiers’ Liability Act 1995 which declares (changing the common law on the topic) that the duty toa trespasser on land, in respect of the condition of the premises, is not to intentionally or recklessly injure him. Although the 1995 Act does not specifically mention it, it is my view that the apparent contradiction between these two pieces of legislation is to be resolved in favour of the view that section 21(3) of the Dogs Act is, within its own sphere of application, unaffected by the Occupiers’ Liability Act. (see McMahon and Binchy Law of Torts (3rd edn) at 759-760).
As far as the plaintiff is concerned, therefore, he was entitled to the protection which the ordinary rules of negligence provide. This means that the owner of the dog should not act unreasonably in dealing with trespassers in these situations.
What is reasonable conduct will vary with the facts, and the following are the relevant facts in this case: first, the plaintiff was known to Mr O’Reilly and to the defendant; it was known where he lived and he was not a stranger; second, the plaintiff, whatever his status on the morning in question, had been previously permitted onto the property; third, the plaintiff and his sons were not acting in a threatening or menacing or abusive fashion which caused Mr O’Reilly to fear for his safety or for the safety of his property; fourth, the property which Mr O’Reilly was protecting was not very valuable and in the eyes of many was worthless scrap; fifth, the dog was a vicious guard dog, apparently trained to attack; last, no warning was given that the dog was about to be released and no opportunity was furnished to the plaintiff to retreat into the van or to leave the property in an orderly fashion.
Moreover, reasonable alternatives were available to Mr O’Reilly to protect the defendant’s property: he could for example, have warned the plaintiff that unless he left the premises he would lock the gates and send for the defendant. Alternatively, he could have warned that he was about to release the dog. Instead he let loose the dog without any warning whatsoever. This was excessive and disproportionate in all the circumstances. Not only was it unreasonable, it was reckless and amounted to the infliction of unwarranted intentional injury of a serious nature on the plaintiff.
The 1986 Act primarily attaches liability to the “owner” of the dog and the Act defines the owner of a dog as including “the occupier of any place where the dog is kept or permitted to live or remain at any particular time unless such occupier proves to the contrary”. The defendant admitted he was the occupier of the yard and, while he denied in court that he owned the dog, claiming that Mr O’Reilly was the owner, he did not deny that he knew that the dog was kept on the premises or that he allowed Mr O’Reilly to build a shed in which the dog was kept. Even if I accept the evidence of the defendant, however, that he was not the owner of the dog, and reject the evidence that he admitted ownership when he visited the plaintiff on the evening of the incident, so that in these circumstances the defendant does not attract liability as the owner of the dog, the defendant would still be liable vicariously for Mr O’Reilly’s conduct on this occasion.
The defendant permitted Mr O’Reilly to be on the property and, from his own evidence, he gave Mr O’Reilly exclusive access to the skips in return for some caretaking duties to be carried out by Mr O’Reilly. The relationship between the defendant and Mr O’Reilly, in such circumstances, was de facto one of service, where the defendant had control over what Mr O’Reilly was to do, how he was to guard the premises and who was to be admitted. (See Moynihan v Moynihan [1975] IR 192). There was clearly sufficient control by the defendant over Mr O’Reilly to render him vicariously liable for the torts of Mr O’Reilly while he was carrying out his caretaking duties and protecting the defendant’s property.